TODD PATTERSON, PETITIONER V. FEDERAL BUREAU OF INVESTIGATION, ET
AL.
No. 89-1731
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit
Brief For The Respondents In Opposition
TABLE OF CONTENTS
Questions Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The decision of the court of appeals (Pet. App. 1a-47a) is reported
at 893 F.2d 595. The decision of the district court (Pet. App.
48a-113a) is reported at 705 F. Supp. at 1033.
JURISDICTION
The judgment of the court of appeals was entered on January 8,
1990. A petition for rehearing was denied on February 7, 1990. Pet.
App. 130a-131a. The petition for a writ of certiorari was filed on
May 8, 1990. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether a law enforcement agency complied with the Privacy Act
in maintaining records relevant to an authorized investigation when
that statute permits maintenance of records "pertinent to and within
the scope of an authorized law enforcement activity * * * " (5 U.S.C.
552a(e)(7)).
2. Whether the courts below correctly found that they could resolve
the merits of petitioner's Privacy Act claim in part on the basis of
in camera review of materials showing that no violation occurred.
3. Whether petitioner's unsubstantiated claim of interference with
his mail by an unknown government agent or agency was properly
rejected.
STATEMENT
1. In 1983, petitioner, then an elementary school student, wrote to
numerous foreign governments as part of an educational project. He
enclosed much of his correspondence in envelopes bearing the return
address of "Laboratory Disposable Products," a business operated by
his parents. Pet. App. 4a-5a. The large amount of this international
correspondence came to the attention of respondent Federal Bureau of
Investigation (FBI) through classified means, and the agency opened an
investigation. An FBI Special Agent visited petitioner's home and
spoke to his mother and father, thereby learning the innocent nature
of petitioner's correspondence. Pet. App. 5a.
After the Special Agent's visit to petitioner's home, the FBI
changed the name of the relevant record in its internal files from
"Laboratory Disposable Products" to "Todd Patterson," and described
the nature of petitioner's project. The agency concluded that no
further investigation was appropriate. Pet. App. 6a-7a.
In April 1987, petitioner requested from FBI headquarters copies of
his "personal file" under the Freedom of Information Act (FOIA). Pet.
App. 8a. The FBI responded in August 1987 that the information
pertaining to him in FBI headquarters files was exempt from release
pursuant to the FOIA and the Privacy Act, under provisions exempting
classified material from disclosure. Pet. App. 58a-59a.
The Department of Justice reviewed the FBI's determination and
assured petitioner that there was no derogatory material about him in
the FBI files. C.A. App. 134. It also released in redacted form some
of the records, but the rest of the file remained classified. C.A.
App. 136. The disclosed documents made clear that, once the FBI had
determined the nature of petitioner's correspondence, it had no
intention of continuing its investigation. C.A. App. 140-141.
Petitioner subsequently presented a second FOIA request to the Newark
FBI office. Pet. App. 8a-9a; Pet. App. 60a.
2. Petitioner filed this suit in May 1988 against the FBI and an
unknown agency and employee of the United States. Petitioner
complained that the FBI had failed to comply with the FOIA and the
Privacy Act. Pet. App. 299a-303a. He also alleged that, since 1983,
his mail had been illegally opened and damaged in violation of the
First and Fourth Amendments and various statutory provisions. Pet.
App. 303a-306a. Petitioner requested disclosure of his entire FBI
file under the FOIA, damages and injunctive relief under the Privacy
Act, an injunction against the claimed obstruction and surveillance of
his mail by the government, and the expunging of any records gathered
as a result of surveillance activities. Pet. App. 299a-306a. /1/
In response to the complaint, the government offered to expunge
petitioner's name from its records. Pet. App. 10a. This offer has
been repeated throughout the litigation, but has never been accepted
by petitioner.
Petitioner sought discovery from the government regarding FBI
investigative activities, including information concerning the types
and meanings of internal markings the FBI uses on its files; the
content of files the government maintains on him, his parents, and
their family business; the reason these files were created, and
whether the FBI investigates those who engage in foreign
correspondence; the way the FBI learned of his correspondence; and
whether there had been any wiretap on the Patterson telephone. /2/
See Pet. App. 255a-285a. Some of the information sought by Patterson
was provided in answers to interrogatories and in affidavits by FBI
Special Agents. See ibid. However, as to questions delving primarily
into the counterintelligence investigative techniques of the FBI, the
United States invoked the state secrets privilege against disclosure.
Pet. App. 256a-264a, 273a, 280a-285a.
In support of its FOIA exemption claims regarding the FBI files, an
FBI Special Agent affirmed that he had personally examined the
withheld material and confirmed that it concerns intelligence sources
and methods. C.A. App. 95-96. He also explained that proper
classification procedures had been followed. C.A. App. 96-97. The
Special Agent then described in considerable detail each of the
documents that were withheld in whole or part, and the reasons for
their non-disclosure. C.A. App. 98-117. He explained the harm
resulting from disclosure of intelligence sources and methods, as well
as the internal FBI file markings. The FBI also declared that the
agency's files did not indicate that the Patterson premises had ever
been subject to electronic surveillance. An FBI Special Agent
attested that the FBI files showed that the agency did not intercept
or open any mail directed to the Pattersons. Pet. App. 16a-17a; C.A.
App. 254-255. /3/
The government moved for summary judgment on petitioner's first and
second causes of action, and moved to dismiss the third cause of
action under Fed. R. Civ. P. 12(b)(2). Pet. App. 10a.
In December 1988, the district court ordered the government to
submit in unredacted form certain of the documents at issue for an in
camera inspection so that the court could "assure itself that the FBI
has acted in good faith with regard to its investigation of
(petitioner), that the FBI complied with all relevant government
regulations, and that the FBI engaged in no illegal conduct." Pet.
App. 115a. In response, the government submitted for in camera
inspection all of the unredacted documents at issue, an additional
explanatory declaration by James Geer, the FBI Assistant Director then
in charge of the Intelligence Division, and a Declaration and Claim of
Privilege from the Attorney General. /4/
After conducting an in camera inspection of the documents and the
Geer declaration, the district court granted judgment in favor of the
government on all three of petitioner's causes of action. Pet. App.
48a-113a. The court found first that proper procedures were followed
in classifying the material at issue (Pet. App. 69a) and confirmed
that the "withheld material, read in conjunction with the Greer (sic)
affidavit, does establish a logical connection between each withheld
or redacted document and the risk that certain intelligence methods or
sources would be compromised if the withheld material was released."
Pet. App. 75a-76a. /5/ Noting that "(a)t first blush, the
investigation appears ludicrous," the district court found that the
circumstances of petitioner's mailings could be expected to prompt the
FBI to investigate the matter "using properly classified intelligence
sources and methods." Pet. App. 78a. The court concluded that the
subject files were properly exempted from disclosure under the FOIA.
The district court next determined (Pet. App. 89a) that the FBI had
acted properly under the Privacy Act if it could show that the records
it maintained on petitioner were "pertinent to and within the scope of
an authorized law enforcement activity." 5 U.S.C. 552a(e)(7). The
district court ruled that this statutory language is met where the
facts demonstrate that all records maintained regarding an
individual's exercise of First Amendment rights are "relevant to an
authorized law enforcement activity of the agency, and that there
exists a sufficient basis for the maintenance of such records." Pet.
App. 93a-94a (emphasis in original).
The district court determined that the in camera Geer declaration
established such a connection. Pet. App. 97a. The court noted that
the FBI could not know prior to its investigation that petitioner was
involved in nothing illegal or clandestine, but that the agency was
able to determine this fact through an investigation "in the least
intrusive means possible given the circumstances." Pet. App. 97a-98a.
/6/
The district court next found no merit to petitioner's First
Amendment claim, finding as a matter of fact that a review of the
record as a whole made clear that the FBI and any government employees
acted in accord with all applicable statutory and regulatory
guidelines and that such action did not impermissibly chill
petitioner's First Amendment rights. Pet. App. 104a-107a.
The court also rejected petitioner's Fourth Amendment claim that
some government agency had improperly opened his mail. Pet. App.
107a. The court found that the public record and its in camera review
showed that the FBI had conducted no illegal searches, and that the
Attorney General had properly invoked the state secrets privilege to
defeat petitioner's attempt to trawl for evidence of wrongdoing by
some other unknown federal agency. Pet. App. 107a-109a. Similarly,
the court found no evidence of governmental violation of statutes
prohibiting interference with the mails, and confirmed that
petitioner's discovery attempts on this point also were precluded by
the state secrets privilege. Pet. App. 110a-111a.
Shortly after the district court's ruling, petitioner sought
reconsideration, arguing that the court had erred in relying on the
government's in camera submissions. On March 30, 1989, the court
denied this motion, noting that the FOIA specifically provides for in
camera submissions (5 U.S.C. 552(a)(4)(B)) and that numerous federal
courts have relied upon in camera procedures in cases involving the
FOIA, the Privacy Act, and claims of the state secrets privilege.
Pet. App. 126a-129a.
3. The Third Circuit unanimously affirmed the ruling by the
district court after itself conducting an in camera inspection of the
documents at issue. During the appellate proceedings, government
counsel repeated the offer to expunge petitioner's name from the
files, and reiterated to the court of appeals that the FBI has no
interest whatsoever in petitioner but was defending this litigation in
order to protect a valuable intelligence source of method. See, e.g.,
Pet. App. 10a n.5; C.A. Tr. 27-29.
The court of appeals first held that the district court had
followed proper procedures in conducting an in camera review because
"the public submissions represent a good faith effort by the FBI to
provide as much access to the information as possible." Pet. App.
19a-20a. The appellate court also agreed that the record showed that
the FBI had correctly followed classification procedures here (Pet.
App. 23a) and had withheld classified material properly under the
exemptions provided by the FOIA (Pet. App. 26a-29a). /7/
After reviewing decisions by four other circuits, the Third Circuit
confirmed the conclusion that no Privacy Act violation had occurred as
a result of the FBI's creation and maintenance of files here. The
court held that the FBI had made the necessary showing that "(its)
records * * * on (petitioner's) exercise of First Amendment rights are
relevant to an authorized law enforcement activity of the FBI." Pet.
App. 34a-38a.
Reaching petitioner's third cause of action, the Third Circuit
noted that the district court had concluded that the FBI and all FBI
and government employees had acted in accord with all statutory,
regulatory, and administrative guidelines, and that the invocation of
the state secrets privilege prevented further discovery regarding the
intelligence source and method at issue. Pet. App. 38a-43a. The
court of appeals held that the district court had committed a harmless
procedural error on this point by treating the government's motion to
dismiss for lack of personal jurisdiction as one for summary judgment.
Treating the jurisdictional question as one that implicated the
merits of the case as well, the court of appeals confirmed that,
because the record contains no evidence of abuse by the FBI and the
state secrets privilege prevents further discovery, dismissal of the
case was appropriate. Pet. App. 44a-46a.
ARGUMENT
After reviewing in camera the documents at issue and explanatory
declarations, both courts below have found that petitioner has no
cause of action here; no judge has dissented from this determination.
Rather, all of the judges below have concluded that the government
has acted properly in conducting its limited investigation of the
unique facts of this case and then protecting a valuable intelligence
source or method. This ruling is correct and is fully consistent with
numerous holdings of other courts. Review by this Court is plainly
unwarranted.
1. Petitioner first contends (Pet. 16-40) that the court of appeals
applied 5 U.S.C. 552a(e)(7) of the Privacy Act in a manner that
undermines Congress's intent in enacting the provision and conflicts
with the interpretations of other circuits. His contention is without
merit.
a. The Third Circuit determined that the FBI had complied with the
Privacy Act because maintenance of the records here was "relevant to
an authorized law enforcement activity of the agency." Pet. App. 37a.
/8/ That interpretation accords with the plain language of Section
552a(e)(7), which prohibits federal agencies from maintaining records
"describing how any individual exercises rights guaranteed by the
First Amendment * * * unless (the records are) pertinent to and within
the scope of an authorized law enforcement activity" (emphasis added).
/9/
The legislative history supports a straightforward reading of the
statutory text. The proposed version of Section 552a(e)(7) was
amended on the House floor to clarify that "such activities as are
pertinent to, and within the scope of, duly authorized law enforcement
activities are not meant to be excluded by the broad terms" of the
section. 120 Cong. Rec. 36,957 (1974) (Rep. Ichord). The House
report on Section 552a(e)(7) indicated that federal agencies were not
to maintain records concerning "the political or religious beliefs or
activities of any individual," unless authorized by statute. H.R.
Rep. No. 1416, 93d Cong., 2d Sess. 16, 25 (1974). In addition, the
Senate report on the provision that became Section 552a(e)(7) makes
clear the limited purpose that Congress had in mind, noting that
"(t)his section's restraint is aimed particularly at preventing
collection of protected information not immediately needed, about
law-abiding Americans, on the off-chance that the Government or the
particular agency might possibly have to deal with them in the
future." S. Rep. No. 1183, 93d Cong., 2d Sess. 56-57 (1974).
The courts below correctly found that the FBI actions here do not
in any sense fit within the activity proscribed by Congress. This was
not an instance of the agency monitoring a political program or
activity; rather, the FBI conducted a highly limited investigation of
specific action for authorized counter-intelligence purposes. /10/ As
the record demonstrates, that investigation was quickly terminated
when the innocent nature of petitioner's activity was learned,
something that could not have been discovered without at least some
inquiry. And, even though we have offered to expunge petitioner's
name from the FBI files, maintenance /11/ of the files serves an
innocuous and valuable purpose. Since petitioner has kept up his
correspondence with foreign governments (see Pet. 3-4), the existing
files enable the agency to determine immediately that no investigation
is necessary or appropriate as petitioner's name comes to its
attention through the same types of intelligence sources and methods
which raised it originally. /12/
b. Contrary to petitioner's claim (Pet. 36-40), the Third Circuit's
ruling is fully consistent with applications of Section 552a(e)(7) by
other circuits. While describing the inquiry under Section 552a(e)(7)
in slightly varying terms, the circuits appear to agree on what
conduct is prohibited; each circuit would find the FBI's conduct here
proper. In addition, each would reject the extremely stringent
standard suggested by petitioner in the courts below that an agency
cannot even maintain a file unless there is a "reasonable suspicion,
based on specific and articulable facts" that the subject has
committed or is about to commit a crime. See Pet. C.A. Br. 20.
Thus, in Clarkson v. IRS, 678 F.2d 1368, 1375 (1982), the Eleventh
Circuit remanded a case for a determination whether the IRS had
violated Section 552a(e)(7) by "engag(ing) in the practice of
collecting protected information, unconnected to any investigation of
past, present or anticipated violations of the statutes" which it is
authorized to enforce. On remand, the district court found that the
collection was permissible under Section 552a(e)(7), and this
determination was upheld on appeal because the record supported the
findings that the documents maintained by the IRS "are related to
investigations of illegal tax protester activities * * * (and were) in
connection with legitimate law enforcement activities." Clarkson v.
IRS, 811 F.2d 1396, 1397 (11th Cir.), cert. denied, 481 U.S. 1031
(1987).
The Sixth Circuit has also adopted a "relevancy" test, ruling that
the government acts properly under Section 552a(e)(7) so long as its
"investigation is relevant to an authorized criminal investigation or
to an authorized intelligence or administrative one." Jabara v.
Webster, 691 F.2d 272, 279-280 (1982), cert. denied, 464 U.S. 863
(1983); accord Nagel v. Department of HEW, 725 F.2d 1438, 1441 n.3
(D.C. Cir. 1984). The formulations of the Eleventh and the Sixth
Circuits, like the Third Circuit's "relevancy" standard, all require
that the government collect only information connected to legitimate
law enforcement objectives. The conduct of the FBI here, an
authorized counterintelligence investigation, would satisfy each
circuit's formulation.
The Ninth Circuit in MacPherson v. IRS, 803 F.2d 479, 481-484
(1986), declined to formulate any one standard, emphasizing that each
case entails balancing the need to avoid chilling the exercise of
First Amendment rights against the need to conduct surveillance and
recording of a wide range of activities, including some protected by
the First Amendment. The court then approved the surveillance and
recording of information concerning an individual "not suspected * * *
of any past, present, or anticipated illegal conduct" (id. at 480)
because that individual spoke at tax protester conferences. Thus,
although its standard remains unarticulated, the Ninth Circuit
evidently would not find the conduct at issue here unlawful because it
generated information about an individual not suspected of criminal
activity. There is no need for this Court's intervention at this
time, since the circuits appear to be reaching a consensus on the type
of conduct permissible under Section 552a(e)(7). /13/
2. Petitioner next contends (Pet. 40-48) that the courts below
violated principles of due process and Fed. R. Civ. P. 56 by relying
in part on the in camera material to resolve petitioner's Privacy Act
claim. He also asserts (Pet. 48-54) that there is a conflict among
the circuits on the question whether a court can grant summary
judgment based on such in camera procedures. Neither contention has
merit.
a. The federal courts have approved use of in camera proceedings to
resolve issues in a variety of contexts, and to rule finally on both
constitutional and statutory claims. See, e.g., Molerio v. FBI, 749
F.2d 815, 824-826 (D.C. Cir. 1984); Pollard v. FBI, 705 F.2d 1151,
1153-1154 (9th Cir. 1983); Salisbury v. United States, 690 F.2d 966,
973 n.3 (D.C. Cir. 1982); Stein v. Department of Justice, 662 F.2d
1245, 1255-1256 (7th Cir. 1981); Farnsworth Cannon, Inc. v. Grimes,
635 F.2d 268, 281 (4th Cir. 1980) (en banc).
It is well established that such studied use of in camera documents
does not violate the Due Process Clause. Thus, while this Court
recently noted that the "routine use" of in camera procedures could
raise due process concerns, it confirmed the "sound discretion" of the
district courts to conduct in camera review when warranted to
establish a claim of privilege. United States v. Zolin, 109 S. Ct.
2619, 2630, 2631 (1989); see also EPA v. Mink, 410 U.S. 73, 92-93
(1973) (discussing propriety of in camera proceedings in FOIA case).
Indeed, Congress in the FOIA explicitly authorized in camera
procedures as the courts rule on the merits of a requester's statutory
claim. See 5 U.S.C. 552(a)(4)(B). Accord S. Rep. No. 854, 93d Cong.,
2d Sess. 16 (1974) ("in some cases of a particularly sensitive nature
(a court may) decide to entertain an ex parte showing by the
government"); S. Conf. Rep. No. 1200, 93d Cong., 2d Sess. 9 (1974)
("(w)hile in camera examination need not be automatic, in many
situations it will plainly be necessary and appropriate"). No court
has held that this part of the FOIA is unconstitutional because due
process prohibits resolution of the merits of a statutory claim
through in camera proceedings. See Arieff v. Department of the Navy,
712 F.2d 1462, 1469 (D.C. Cir. 1983) (FOIA in camera review provision
was merely a statutory confirmation of a power that the courts already
possessed); see, e.g., Pollard, 705 F.2d at 1153-1154 (resolving
summary judgment motion).
Likewise, a claim of state secrets privilege is frequently
considered in camera. See United States v. Reynolds, 345 U.S. 1, 10
(1953); see, e.g., Farnsworth Cannon, supra. The privilege requires
dismissal when it rebuts a plaintiff's prima facie case or when the
action cannot be litigated without exposing the privileged
information. See Molerio, 749 F.2d at 825; Halkin v. Helms, 690 F.2d
977, 997-1001 (D.C. Cir. 1982); Farnsworth Cannon, 635 F.2d at 281.
Resolution of Privacy Act claims often raises similar concerns
about the disclosure of highly sensitive information and interests of
national security; courts have therefore allowed Privacy Act claims
to be determined on their merits on the basis of in camera review of
documents. See Molerio, 149 F.2d at 825-826 (privileged material
reviewed in camera to resolve summary judgment motion); Jabara, 691
F.2d at 274, 280 (use of in camera material approved; left to
district court discretion on remand). Like the other cases involving
national security and privacy claims, these cases present unique
demands: a court can neither disclose the very information sought to
be protected nor punish the government for protecting the public
interest by keeping sensitive information secret. Rather, "courts
have been charged with the responsibility of deciding the dispute
without altering (the) unequal condition (that one party does not know
the content of the withheld material), since that would involve
disclosing the very material sought to be kept secret. The task can
often not be performed by proceeding in the traditional fashion, so
that (the ex parte, in camera procedure that) * * * is a rarity among
our cases generally must become a commonplace in this unique field,"
Arieff, 712 F.2d at 1471.
b. Contrary to petitioner's contention (Pet. 48-51), the Third
Circuit's ruling does not conflict with Association for Reduction of
Violence v. Hall, 734 F.2d 63 (1st Cir. 1984). Hall did not involve
the Privacy Act; it concerned a ruling resolving the merits of a
cause of action brought under 42 U.S.C. 1983 alleging a retaliatory
transfer of prisoners for First Amendment protected activity. The
court of appeals held that summary judgment could not be premised on
material covered by qualified privileges of nondisclosure. See also
Bane v. Spencer, 393 F.2d 108, 109 (1st Cir. 1968) (similar Section
1983 suit), cert. denied, 400 U.S. 866 (1970). Unlike this case and
those cited above, Hall did not involve the special circumstances
present in cases involving national security material and claims of
the state secrets privilege. /14/
3. Finally, petitioner asserts (Pet. 54-64) that the courts below
erred in dismissing his third cause of action, claiming that some
unknown federal agent or agency had violated his First and Fourth
Amendment rights by interfering with his mail.
Petitioner states (Pet. 55-56) that his allegations established
that a government agent had intercepted his mail and had informed the
FBI, and that his foreign incoming mail has regularly been tampered
with. However, there is no evidence in the record of any kind
showing, or even tending to show, that any government agent or agency
has tampered with petitioner's incoming mail. /15/
To the contrary, the district court found (Pet. App. 77a,
109a-111a) that the in camera materials indicated that the FBI had not
illegally interfered with petitioner's mail. The government's proper
claim that the in camera material was exempt from discovery under the
FOIA and the state secrets privilege prevents release of that material
or further discovery into its content. See, e.g., Molerio, 749 F.2d
at 825-826; Halkin, 690 F.2d at 997-1001; Farnsworth Cannon, 635
F.2d at 281; see also Weinberger v. Catholic Action, 454 U.S. 139,
146-147 (1981). Significantly, petitioner does not challenge the
validity of the state secrets privilege assertion. Consequently,
petitioner's third cause of action was properly rejected, because
petitioner has not shown that any government agency violated his
rights, and is barred from taking discovery in order to attempt to
back up his otherwise unsupported claims.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
STUART M. GERSON
Assistant Attorney General
DOUGLAS LETTER
Attorney
JULY 1990
/1/ Although petitioner's suit originally involved only the request
made to FBI Headquarters in Washington, D.C., the parties and the
district court treated petitioner's second FOIA request as part of the
case too. The FBI responded to that request by releasing some further
information, and withholding other material under the FOIA exemptions
covering classified material and records whose release would violate
privacy interests. See Pet. App. 60a.
/2/ During the litigation, petitioner's mother asserted that,
beginning in 1983, she had heard strange noises on her telephone.
Pet. App. 247a. She also related that a now-deceased former employee
had claimed in 1986 that he heard a voice on the Pattersons' business
telephone line indicating that it was not the telephone that was meant
to be "tapped." Pet. App. 249a.
/3/ In addition, the government told petitioner that the FBI had
not supplied information regarding him to any individual or agency.
Pet. App. 277a. The government also stated without equivocation that
no investigation or inquiry regarding petitioner had been conducted
after a Special Agent visited petitioner's home and discovered the
innocent nature of his project. Pet. App. 278a.
/4/ The Attorney General declared that he had "personally
determined that (the information at issue), if disclosed, could damage
the national security of the United States." C.A. App. 299. The
Attorney General cautioned that damage to the national security can
reasonably be expected to occur even when "isolated segments" of
intelligence information are revealed because such segments can be
collected over time and combined so as to make possible identification
of intelligence sources, methods, and activities. C.A. App. 300.
/5/ The court found no evidence of agency bad faith, noting that
the allegations concerning damaged mail did not create a genuine
factual issue of whether any United States agency interfered with this
mail: "(t)he distance the mail traveled, the size and content of the
envelopes, and the national origin of the mail are the far more likely
culprits in assessing why (petitioner's) mail may have arrived in
damaged condition. Also, (petitioner's) allegation of electronic
eavesdropping is not substantiated by any substantive, credible or
admissable evidence * * * ." Pet. App. 77a-78a.
/6/ The district court advised petitioner "that any records
maintained by the FBI on him do not reflect negatively on his
character or conduct. Accordingly, (it) * * * assure(d) (him) that
the law enforcement activity conducted by the FBI in this case should
not in any way inhibit him from pursuing any legitimate exercise of
his First Amendment rights, including writing letters to countries
throughout the world. Furthermore, (petitioner's) fear of an aborted
or limited public service career arising out of these events is
misplaced." Pet. App. 99a-100a.
/7/ The court of appeals also assured petitioner that there is
nothing in the FBI files that is in any way derogatory. Pet. App. 26a
n.10.
/8/ The "law enforcement" language of Section 552a(e)(7)
encompasses more than simple investigation of criminal activity, also
covering authorized intelligence investigations. See Jabara v.
Webster, 691 F.2d 272, 280 (6th Cir. 1982), cert. denied, 464 U.S. 863
(1983).
/9/ Petitioner notes (Pet. 26-28) that the standard established by
Section 552a(e)(7) of the Act, which limits collection of information
concerning First Amendment activities, should be more rigorous than
that established by Section 552a(e)(1), which limits information
generally collected by agencies. The Third Circuit's standard is not
at odds with this: information collected under Section 552a(e)(7)
must be relevant to "an authorized law enforcement activity";
information can be collected under Section 552a(e)(1) as long as it is
relevant and necessary to accomplish, more broadly, "a purpose of the
agency" set by statute or executive order. (Additionally, no records
may be kept if they violate Section 552a(e)(7) even if they are not a
part of an agency's "system of records"; they may be kept under
Section 552a(e)(1) if they are not incorporated into the agency's
"system of records." See, e.g., Clarkson v. IRS, 678 F.2d 1368,
1373-1377 (11th Cir. 1982).)
/10/ The FBI's counterintelligence activity here was authorized
under 28 U.S.C. 533 and Section 1.14 of Exec. Order No. 12,333, 3
C.F.R. 200 (1981 comp.) (reprinted at 46 Fed. Reg. 59,949 (1981)).
/11/ Petitioner's claim (Pet. 28-31) that there exists a circuit
conflict regarding the treatment of the "collection" as opposed to the
"maintenance" of records under Section 552a(e)(7) is erroneous.
Neither MacPherson v. IRS, 803 F.2d 479, 483-485 (9th Cir. 1986), nor
Albright v. United States, 631 F.2d 915 (D.C. Cir. 1980),
distinguished the standard to be applied to the two activities in
analyzing Section 552a(e)(7).
/12/ Disposal of FBI records is also regulated in order to assure
that materials of historical import are not destroyed, as required by
the U.S. District Court for the District of Columbia. See American
Friends Service Comm. v. Webster, 485 F. Supp. 222 (1980), and Civ.
No. 79-1655 (Sept. 8, 1986). According to the FBI Records Retention
Plan and Disposition Schedule, records are destroyed after established
retention periods or are transferred to the National Archives.
/13/ Petitioner also asserts the relevance of Paton v. LaPrade, 524
F.2d 862 (3d Cir. 1975). That case held that certain actions by the
FBI could have violated the constitutional and statutory rights of an
individual, entitling her to the expunging of her FBI file. The
conduct at issue in that case predated the enactment of the Privacy
Act, and did not involve an inquiry into the legitimate law
enforcement actions of an agency. In any event, petitioner's attempts
to establish an intra-circuit conflict do not warrant this Court's
attention. See Wisnewski v. United States, 353 U.S. 901, 902 (1957).
/14/ Thus, since Hall, the First Circuit itself has indicated that,
while public affidavits and filings are preferred, in camera
proceedings may be used to resolve the merits of FOIA cases. See
Curran v. Department of Justice, 813 F.2d 473, 477 (1987).
/15/ As the district court noted, "(t)he distance the mail
traveled, the size and content of the envelopes, and the national
origin of the mail are the far more likely culprits in assessing why
(petitioner's) mail may have arrived in damaged condition." Pet. App.
77a-78a.